Legal Guide to Family Violence Orders

Content provided by Women's Legal Services NSW

This guide shows how people can obtain protection orders from the court to protect them from technology-facilitated stalking and abuse. In Tasmania these protection orders are called Family Violence Orders.

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1.1. Family Violence Orders

The Family Violence Act 2004 (Tas)(‘the Act’) is the legislation (law) in Tasmania that allows the courts to make orders protecting people from family (or domestic) violence.

A person who is experiencing family violence (‘affected person’) may apply to the Magistrates Court for a Family Violence Order (‘FVO’). An FVO can protect a person by ordering the person against whom the FVO is made (‘respondent’) not to commit further acts of family violence.

The Magistrates Court will grant an FVO if it is satisfied on the balance of probabilities (more likely than noy) that a person has committed family violence and that person may again commit family violence.

1.2. Can technology-facilitated stalking and abuse be a form of family violence?

The short answer is yes – technology-facilitated stalking and abuse may be a form of family violence.

The meaning of family violence can be found in section 7 of the Act. Family violence refers to a certain type of conduct committed by a person, directly or indirectly, against that person’s spouse or partner. It does not include conduct committed by a person against their child, parent, or other relative.

Examples of behaviour that is family violence, which may be perpetrated through technology-facilitated stalking and abuse include:

stalking (or attempting to do so) defined in section 192 of the Criminal Code Act 1924 (Tas) see Guide to Relevant Criminal Offences

economic abuse

emotional abuse or intimidation

contravening an external FVO, an interim FVO, an FVO, or a PFVO.

Economic abuseEconomic abuse is the conduct of a person towards their spouse or partner (‘the other person’) that denies the other person financial autonomy. Such conduct includes coercing the other person to give up control over that person’s assets or income, disposing of joint property, and withholding reasonably necessary financial support.

It is an offence for a person, with the intent to unreasonably control or intimidate that person’s spouse or partner, or to cause that person’s spouse or partner mental harm, apprehension, or fear, to engage in economic abuse.

Maximum penalty: Fine of 40 penalty units or imprisonment for two years.

Emotional abuse or intimidationEmotional abuse is conduct that a person knows, or ought to know, is likely to have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear in, that person’s spouse or partner. It includes limiting the freedom of movement of a person’s spouse or partner by means of threats or intimidation.

It is an offence for a person to engage in emotional abuse or intimidation.

Maximum penalty: Fine of 40 penalty units or imprisonment for two years.

Where can I find this information in the Act?

See sections 7, 8, and 9 of the Act for more information about what behaviour constitutes family violence.

1.3. Who is a spouse or partner?

Family violence refers to a certain type of conduct committed by a person, directly or indirectly, against that person’s spouse or partner.

The spouse or partner of a person means another person with whom the person is, or has been, in a family relationship.

A family relationship is a marriage or a significant relationship within the meaning of the Relationships Act 2003 (Tas). A significant relationship is a relationship between two adult persons who have a relationship as a couple, and who are not married to one another or related by family.

Where can I find this information in the Act?

See section 4 of the Act.

1.4. Who can apply for a Family Violence Order?

The police may apply for an FVO on behalf of the affected person.

If the affected person is an adult, that person may also apply for an FVO on their own behalf at the Magistrates Court.

Where can I find this information in the Act?

See section 15 of the Act.

1.5. How can a Family Violence Order protect a person from technology-facilitated stalking or abuse?

The Magistrates Court may make an FVO if satisfied, on the balance of probabilities that a person has committed family violence and that person may again commit family violence.

The Court may include in an FVO any condition that appears to the Court to be necessary or desirable to prevent the commission of family violence against the affected person or to protect any other person named in the FVO. This includes orders preventing the commission of technology-facilitated stalking and abuse.

A respondent mustfollow the conditions of an FVO. If the respondent breaks any of the FVO conditions (called contravening the FVO), it is an offence and the police can investigate and lay charges against the respondent (see section 1.8 below).

The Application for Family Violence Order (‘the application form’) provides some guidance on the orders that the Court can make to prevent the commission of technology-facilitated stalking and abuse:

Excerpt from the application form to apply for a Family Violence Order

CONDITIONS SOUGHTPlease tick the sample conditions that you are asking the Court to make and provide details in the blank spaces, where appropriate. (Name of Respondent) must1 Not stalk (see definition of stalking as it appears in the Criminal Code Act 1924, Section 192)2 Not directly or indirectly threaten, abuse or assault .3 Not be within _____ metres of, or contact __________ directly or indirectly (including by any form of electronic or other communication), except:

(a) ONLY for the purposes of discussing matters arising out of their relationship, including relating to ______________________(child/ren), by:letter or facsimile;e-mail;electronic message;electronic messenger or social media (such as Facebook);telephone; an agreed 3rd person (adult), _________________ (name of agreed 3rd person); and/or(b) to attend counselling, family dispute resolution, mediation or meetings conducted by a Court-appointed expert. Such meetings to be by consent and arranged by:letter or facsimile;e-mail;electronic message;electronic messenger or social media (such as Facebook);telephone; an agreed 3rd person (adult), _________________ (name of agreed 3rd person or service (if applicable); and/or

Specific Conditions

The Court to make conditions as it considers necessary or desirable to prevent the commission of family violence. If applicable, the applicant for an FVO can ask the Court to include conditions that are specific to their situation. For example:

Suggested wording to cover ‘revenge porn’ situationsThe person bound is prohibited from directly or indirectly publishing, or sending by email or through other electronic communication, photographs or videos of the protected person engaging in sexual activities or in which the protected person appears naked or partially naked.

Suggested wording to cover ‘tracking/surveillance device’ situationsThe person bound is prohibited from attempting to locate, follow or keep the protected person under surveillance.

Where can I find this information in the Act?

See sections 16 and 35 of the Act.

1.6. How long does a Family Violence Order last?

An FVO remains in force for whatever period of time the Court considers necessary to ensure the safety and interests of the affected person. Alternatively, it remains in force until an order is made revoking the FVO.

In the application form for an FVO, the applicant can ask the Court to make an FVO of 6 or 12 months duration, or any other duration.

Where can I find this information in the Act?

See section 19 of the Act.

1.7. What if a person is in urgent need of protection?

Interim orders

If a person is in urgent need of protection, they can ask the Court to make an interim order for their protection when they apply for an FVO (‘interim FVO’). The Court can make an interim FVO whether or not it is satisfied, on the balance of probabilities, that a person has committed family violence and that the person may again commit family violence.

An interim FVO takes effect immediately if the respondent is in court when the interim order is made. Otherwise, the interim order takes effect when the respondent is served personally with the interim FVO or a copy of it.

An interim FVO may contain the same conditions as in a final order. It usually lasts until the Court can hear more evidence and decide on whether or not to make a final order for an FVO.

Where can I find this information in the Act?

See sections 23 and 25 of the Act.

1.8. Other protection orders

Police Family Violence Orders

A police officer may apply for a police family violence order (PFVO) if the officer is satisfied that a person has committed, or is likely to commit, a family violence offence.

A ‘family violence offence’ means any offence the commission of which constitutes family violence.

Conditions that a PFVO may include, which relate to preventing the commission of technology-facilitated stalking and abuse, are:

refrain from harassing, threatening, verbally abusing or assaulting an affected person, affected child or other person named in the order

refrain from contacting an affected person, affected child or other person named in the order directly or indirectly or otherwise than under specified conditions.

A PFVO takes effect from the date it is served on the respondent. It lasts for the duration specified in the PFVO, but for no longer than 12 months. Also, a PFVO is revoked by the issue and service of an FVO or interim FVO in respect of the same parties.

Where can I find this information in the Act?

See sections 4 and 14 of the Act.

Restraint Orders

If, after hearing an application for an FVO, the Court is not satisfied, on the balance of probabilities, that a person has committed family violence and that the person may again commit family violence, the Court may consider making a restraint order in accordance with section 106B(1) of the Justices Act 1959 (Tas).

Where can I find this information in the Act?

1.9. What if a person breaks the conditions of a Family Violence Order by engaging in technology-facilitated stalking or abuse?

When a person does not obey the conditions of an FVO, interim FVO, or PFVO (‘protection order’), this is called a breach or contravention of the protection order.

It is an offence to contravene a protection order. If a person has previously contravened a protection order and goes on to commit further contraventions, more severe penalties will apply.

The maximum penalty for a person who contravenes a protection order ranges from a fine of 20 penalty units or imprisonment for 12 months for a first offence to imprisonment for five years (for a fourth or subsequent offence).

A previous offence (or a previous contravention) means any previous contravention of a protection order, regardless of whether the order was made for the protection of the same affected person or someone else.

Where can I find this information in the Act?

See section 35 of the Act.

1.10. Can police get involved if a family member engages in technology-facilitated stalking or abuse?

Certain conduct in relation to technology-facilitated stalking or abuse may constitute a criminal offence, which police can investigate and, if there is sufficient evidence, charge and prosecute. Please see the Legal Guide on Relevant CriminalOffences.

1.11. How can a person apply for a Family Violence Order?

Applying in person

A person can apply for an FVO on their own at the Magistrates Court of Tasmania. Application forms.

Applying through police

Where Tasmania Police have responded to a family violence incident, or where a family violence offence has been reported to them, police may issue a PFVO or assist the affected person with making an application to Court for an FVO.

1.12. Further help and information

LEGAL ADVICE: At any stage, it is important for a person to obtain legal advice about their situation and the options available to them. Please see the legal services directory in the Support page for referrals to the nearest legal service.

1.13. Terminology

Language of ‘Victim’ vs ‘Survivor’

Some women who are experiencing, or who have experienced, domestic violence use the term ‘victim’ of domestic violence to describe themselves. Others believe the term ‘survivor’ of domestic violence more accurately reflects their experience.

Whilst acknowledging that each woman’s experience is unique and individual to her circumstances, for consistency, these guides will refer to women who are experiencing, or who have experienced, domestic violence as ‘victims’ of domestic violence.

Gender and Language

While domestic violence can happen in many circumstances, in the vast majority of reported domestic violence cases men are the perpetrators and women the victims.

For this reason these guides use ‘he’ to refer to perpetrators and ‘she’ to refer to victims. This is not intended to exclude other situations.

Definitions

Criminal Offence (or offence)A criminal offence is an offence against the State. It is commonly referred to as ‘breaking the law’.

Summary offenceLess serious offences (such as parking violations), are known as summary offences. Summary offences normally have a maximum penalty of no more than 12 months imprisonment or are not punishable but imprisonment at all.

ChargeWhen a person is charged with an offence, it means that the police have formally accused that person of committing an offence.

ConvictionWhen a person is convicted of an offence, it means that person has either pleaded guilty to committing the offence, or a court has found that person guilty of committing the offence.

Penalty unitA penalty unit describes the amount payable for a fine.

For example, some offences have a maximum penalty of a fine of 100 penalty units, others have a maximum penalty of a fine of 50 penalty units.

Penalty units are used instead of dollar amounts because the rate for penalty units is indexed for inflation and may therefore change from time to time.

The Penalty Units and Other Penalties Act 1987 (Tas) states the dollar amount for one penalty unit.

As of July 2015: one penalty unit = $154.

Therefore, an offence with a maximum penalty of a fine of 50 penalty units will have a maximum fine of $7,750.

DISCLAIMER: The use of technology-facilitated violence is a developing area of the law. The legal information, examples and scenarios contained in the guide are intended to explain the law in general terms only and are not legal advice. They cannot be relied upon or applied by readers in their own cases. Each set of circumstances needs to be looked at individually. You should seek legal advice about your own particular circumstances.